Citation Nr: 1146620
Decision Date: 12/21/11 Archive Date: 12/29/11
DOCKET NO. 07-24 461 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUES
1. Entitlement to a higher initial rating for degenerative disc disease of the lumbar spine with sciatica, rated as 20 percent disabling prior to January 25, 2011 and 40 percent disabling beginning January 25, 2011.
2. Entitlement to a higher initial rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling.
3. Entitlement to a higher initial rating for radiculopathy of the left lower extremity, evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
F. Yankey, Counsel
INTRODUCTION
The Veteran served on active duty from March 1968 to January 1970.
This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for degenerative disc disease with sciatica and evaluated the disability as 10 percent disabling. The grant of service connection and the 10 percent rating were made effective September 7, 2004.
In the February 2006, notice of disagreement the Veteran's representative wrote that the Veteran believed the disability more closely approximated the criteria for a 20 percent rating.
In an October 2006 rating decision, the RO granted an initial rating of 20 percent for degenerative disc disease of the lumbar spine with sciatica, effective September 7, 2004. The RO concluded that this was a full grant of the benefit sought on appeal; however, the Veteran responded in January 2007, by expressing his disagreement with the October 2006 decision.
The Veteran is presumed to be seeking the maximum rating available under law; although he may choose to limit the claim to a lesser benefit. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). While the original notice of disagreement could have been construed as limiting the appeal to a 20 percent rating; the January 2007 statement makes clear that this was not the Veteran's intention.
In December 2010, the Board remanded the case for further action by the originating agency. The case has been returned to the Board for further appellate action.
In May 2011, the Veteran submitted additional medical evidence that has not yet been considered by the RO. However, the Veteran included a waiver of initial RO consideration of that evidence.
In June 2011, the Appeals Management Center (AMC) increased the evaluation for degenerative disc disease of the lumbar spine with sciatica to 40 percent disabling, effective January 25, 2011.
The AMC also granted separate 10 percent ratings for radiculopathy of the right and left lower extremities, effective September 7, 2004. Because the ratings were granted as neurologic manifestations of the service connected low back disability, and the criteria for rating the back disability require rating the neurologic manifestations; the Board deems the propriety of those ratings to also be on appeal.
The issues of entitlement to higher initial ratings for lumbar spine radiculopathy, right lower extremity and lumbar spine radiculopathy, left lower extremity, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
Since September 7, 2004, the Veteran's low back disability has been manifested by limitation of forward flexion of the thoracolumbar spine that approximates 30 degrees; without ankylosis or incapacitating episodes of intervertebral disc syndrome.
CONCLUSION OF LAW
The criteria for a 40 percent disability rating, but no more, for the orthopedic manifestations of degenerative disc disease of the lumbar spine with sciatica have been met since the effective date of service connection. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of prejudice.
The Duty to Assist
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the Veteran, including service treatment records and VA and private treatment records. Additionally, the Veteran was provided VA examinations in February 2005 and January 2011 for his low back disability. There is no evidence or contention that there has been a change in the low back disability since the last examination in January 2011.
In the December 2010 remand, the Board sought to obtain records of the Veteran's treatment from his private physician, RD, MD. Subsequent to the remand, the AMC received and reviewed the requested records. The Board also remanded the claim to afford the Veteran a new examination to evaluate his low back disability and associated bilateral lower extremity disability. The Veteran was afforded a new VA examination in January 2011. With the exception of the missing information related to the bilateral lower extremity disabilities discussed below, the examination provided the information related to the low back requested in the remand. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998).
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.
Legal Criteria
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2011).
Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2011).
At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126.
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006).
The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2011). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.
A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2011).
Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement should be rounded to the nearest five degrees. See Plate V, 38 C.F.R. § 4.71 and 38 C.F.R. § 4.71a, Notes (2) and (4).
In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, Note (3).
For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note (5).
Analysis
Factual Background
At a February 2005 VA examination the Veteran complained of pain located at the right side of the lower back that travelled to the right buttock and occasionally to the heel and top of the foot. Pain was 5/10 and relieved by rest and medication. He also complained of periodic aggravation of his back pain, including while standing in court as a lawyer, requiring some bed rest, but he denied any incapacitation.
On physical examination of the throacolumbar spine, there were no complaints of radiating pain on movement; muscle spasm was absent; and there was no evidence of ankylosis. There was right greater than left paraspinal tenderness, and sciatic notch tenderness noted. There was positive straight leg raising on the left and right. Range of motion was flexion 70 degrees with pain at 30 degrees; extension 30 degrees, with pain at 20 degrees; right lateral flexion 10 degrees, left lateral flexion 20 degrees, and right and left rotation 30 degrees.
The examiner noted that range of motion was additionally limited by pain, fatigue and lack of endurance after repetitive use, and lack of endurance had the major functional impact; but did not report the points in the ranges of motion when such limitation occurred. Range of motion was not additionally limited by weakness or incoordination after repetitive use. The examiner also noted that there were signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. X-rays of the thoracic spine showed degenerative arthritis. The diagnosis was degenerative disc disease with sciatica.
During private treatment in December 2004, the Veteran reported that he had not been able to put his shoes on for 4-5 days, due to low back pain. In June 2005, he reported that his low back pain woke him up at night, and that his pain was increasing. In July 2005, he reported that physical therapy had not helped to improve his low back pain.
From April 2006 to June 2007, it was noted that his lumbar spine was very tender, and he was referred for an MRI. Records from a June 2007 MRI of the lumbar spine show that the Veteran reported increasing back pain, radiating to the right leg. In April 2008, the Veteran was only able to flex 20 degrees and extend 5 degrees.
The Veteran was afforded his most recent VA examination in January 2011. On physical examination, he had a very slow, slightly broad-based gait, with external rotation of both hips to approximately 45 degrees. In stance, his pelves were level. He had a very flat lordosis with a mild left low lumbar scoliosis of about 10 degrees and a compensatory upper lumbar scoliosis of about 7 to 10 degrees, which resulted in a degree of tension in all of the lumbar spinal muscles. Those muscles were also slightly tender to direct pressure.
Range of motion studies showed that he was able to forward flex without pain only to 10 degrees, and with pain, only to 20 degrees. He was hardly able to extend beyond neutral, with notable increased pain. He was able to tilt to the left and right to only 10 degrees, and rotate to the left and right to less than 10 degrees, all with increasing pain as soon as he left the erect posture.
All range of motion exercises were repeated several times with no change in range of motion, but some increase in pain with any motion away from the vertical position. Straight leg raising was positive on the right at less than 5 degrees with right leg and back pain, and on the left at 10 degrees with right leg pain.
Based on X-ray and MRI results, the examiner diagnosed degenerative disc disease and degenerative arthritis of the lumbar spine and disc protrusion L4-L5 with possible left L4 nerve root neuropathy.
Treatment records from the New England Baptist Hospital show that during treatment in May 2011, the Veteran reported that he was unable to lift anything; that he never slept well; that he could not walk or stand without tenderness; and that he could only sit for thirty minutes before experiencing back pain.
On physical examination, the examiner noted that the Veteran was very uncomfortable and had difficulty walking on his toes and heels of the left foot. There was no thoracic spine deformity. During range of motion testing, he was able to flex to 30 degrees, extend to 10 degrees and side bend to 5 degrees bilaterally.
The examiner diagnosed degeneration of the lumbar intervertebral disc, lumbago, sciatica, and displacement of the lumbar intervertebral disc without myelopathy. He also noted that there were no neurological deficits on examination except for weakness in the tibialis anterior, gastrocnemius and EHL on the left. He also noted that there was deconditioning and impairments in flexibility.
As noted above, on VA examination in February 2005, the Veteran was able to flex to 70 degrees, but pain was noted at 30 degrees, and the examiner found that range of motion was additionally limited by pain, fatigue and lack of endurance after repetitive use. Although the examiner did not specify the point at which additional limitation occurred, subsequent records all show limitation of forward flexion to at least 30 degrees. Cf. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
These finding suggests that at all times since the grant of service connection, the Veteran has had functional impairment that would equate to limitation of forward flexion to 30 degrees or less.
Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for limitation of flexion to 30 degrees or less. Therefore, with consideration of the Deluca factors, the Board reads the evidence as showing functional impairment that is equivalent to limitation of forward flexion to at least 30 degrees, and grants a 40 percent rating for the low back disability, beginning September 7, 2004, the effective date of the Veteran's grant of service connection. See 38 C.F.R. §§ 4.40, 4.45 (2011).
A higher rating under the general rating formula for back disabilities would require evidence of ankylosis. Ankylosis has not been reported during the appeal period, and the Veteran was specifically found not to have ankylosis during VA examinations.
The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran does not have ankylosis of the thoracolumbar spine, inasmuch as he retains the ability to move the spine and it has not been shown to be fixed. There is no other basis for a higher schedular rating for the orthopedic manifestations of the low back disability. Accordingly, the Board finds that a rating in excess of 40 percent is not warranted under the general criteria for rating injuries of the spine.
Higher ratings are not available under the formula for rating intervertebral disc syndrome based on incapacitating episodes, as the Veteran has not reported any episodes of physician- prescribed bed rest, and there is no other evidence of prescribed bed rest. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this regard, during the February 2005 VA examination, the Veteran reported complained of periodic aggravation of his back pain, which required some bed rest. However, he does not allege, and the evidence of record does not show, that he was prescribed bed rest by a physician, and he specifically denied any episodes of incapacitation.
Extra-schedular consideration
Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2011).
The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008).
If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").
The record reflects that the Veteran has not required frequent hospitalizations for his service-connected low back disability, and that the manifestations of the disability are not in excess of those contemplated by the scheduler criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluation. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.
Total Rating for Compensation Based on Individual Unemployability (TDIU)
The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2011).
Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
In this case there is no evidence that a service connected disability has caused unemployability. The evidence of record, including VA examination reports, private treatment records, and statements from the Veteran all indicated that the Veteran has been employed at least part-time as an attorney throughout the appeal period. The Veteran has reported that his disabilities affect his ability to work, in that he has pain when standing in court for prolonged periods of time and that he has missed a few days from work due to back pain, but he has not reported being unemployable due to his service-connected disabilities. As there has been no allegation or other evidence of unemployability attributable to the service connected disabilities, the Board finds that further consideration of entitlement to TDIU is not required.
ORDER
A higher initial rating of 40 percent for degenerative disc disease of the lumbar spine with sciatica, is granted, effective September 7, 2004.
REMAND
In the its December 2010 remand the Board instructed that if the examiner found neurologic impairment, he or she should specify the nerves involved and indicated whether there was complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis neuritis or neuralgia was mild, moderate, moderately severe, or severe. The examiner was also asked to note the presence and severity of any muscle atrophy, whether either foot dangled or dropped, whether movement was possible below the knee, and whether there was weakened or lost flexion of either knee.
The January 2011 examiner noted diminished reflexes, loss of sensation and decreased motor strength; however, the examination report does not contain the findings sought in the Board's remand. Specifically, there is no indication as to whether there was complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis neuritis or neuralgia was mild, moderate, moderately severe, or severe. The examiner also failed to note whether there was any muscle atrophy and if so, how severe, and no indication as to whether there was any foot drop or foot dangling. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). The Board is required to remand this case to insure compliance with its prior remand.
The Board also notes that during private treatment in April 2011, the Veteran complained of increasing low back pain that radiated down to the left leg. He also reported that he occasionally experienced foot drop when walking. See treatment records from New England Baptist Hospital dated April 2011.
Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's bilateral lower extremity disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be scheduled for a VA examination to determine the current level of neurologic impairment due to the service connected lumbar spine radiculopathy of the right lower extremity and lumbar spine radiculopathy of the left lower extremity.
The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum.
The examiner should identify the nerves involved and indicate whether there is complete or partial paralysis, neuralgia or neuritis; and whether any partial paralysis neuritis is mild, moderate, moderately severe, or severe.
The examiner should note any other neurologic disability present, and should note the presence and severity of any muscle atrophy; whether either foot dangles or drops, whether movement of muscles is possible below the knee, and whether there is weakened or lost flexion of either knee.
These findings are needed to rate the disability in accordance with criteria contained in VA's scheduled for rating disabilities.
2. If the benefits sought on appeal remain denied, the RO or AMC should issue a supplemental statement of the case before the appeal is returned to the Board, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs